The California Gold Rush was in full swing in 1852 when prospector Robert Phillips settled into his new digs in the Sierra Nevada foothills north of Sacramento. There was a waterway running along his land that he could use to excavate gold. But there was a catch. Matthew Irwin, his neighbor, had already diverted the flow for his own operation. Phillips wanted to redirect the stream back to its original course. Sharing is caring, right? Wrong. Irwin wouldn’t agree, claiming he’d been in the area before Phillips.
The men lawyered up and ended up in the Supreme Court of California. Three years later, Irwin won. The judges decided that Phillips, as the new arrival, had “no right to complain, no right to interfere with the prior occupation of his neighbor, and must abide the disadvantages of his own selection.”
Gold was the motivating factor, but the case was all about water. And thus was a legal precedent established that largely holds in Western states to this day: “first in time, first in right.” Or we might just say “dibs.”
The 174-year-old feud over a stream has set the stage for a seven-state impasse over water allocations from the Colorado River Basin. The river system spans parts of seven states and northwest Mexico, running from the headwaters of the Colorado and Green Rivers in Colorado and Wyoming, respectively, through the Southwest into the Gulf of California. The states mete out water for about 40 million people through a mind-bending web of compacts, regulations, treaties, and other legal arrangements that dictate the basin’s flows for drinking, irrigation, hydropower, and recreation.
The problem is that there is not enough water in the Colorado to serve all extant users—and the amount of runoff is shrinking fast thanks to climate change. Who will have to cut back? A 2007 interim agreement between the states and 30 Native American tribes laid out new strategies to deal with accelerating periods of drought and the knock-on effects of reduced water flows. That agreement, along with a separate pact with Mexico, all expire later this year.
The feuding states seem to be headed for the nuclear option, straight to the Supreme Court.
Everything involving the Colorado River Basin is complicated. The states have been talking about ways to deal with water shortages for decades, but the states have never been able to agree on how to spread the pain. The Bureau of Reclamation, the federal overseer, hasn’t been able to prod the states forward, and they seem more interested in lawyering up.
In cases involving interstate disputes, the next stop is not a state court but the Supreme Court. A high-court decision could leave one group of states worse off than if they had knuckled down and settled the issues themselves.
“As harsh, as difficult, and sometimes as inflexible as the current system is, [it’s] understandable and predictable,” says Thomas Holyoke, a Fresno State University professor of political science and a Western water politics specialist. “If you throw that out, what are you going to replace it with? Who’s going to lose water and who’s going to get hurt? It’s the prospect of that giant unknown that makes everyone so reluctant to move away from a system that most people acknowledge is not serving us terribly well.”
THE GOLD RUSH–ERA COURT DECISION rested on “prior appropriation,” a much older principle in common law. But the Colorado River Compact of 1922 formally laid out a “law of the river” that provides a framework for managing the river, its tributaries, and the many reservoirs throughout the system—above all Lake Mead, created by Hoover Dam, and Lake Powell, created by Glen Canyon Dam. These are the first- and second-largest reservoirs in the country.
The compact divided the region into the Upper Basin states of Colorado, New Mexico, Wyoming, and Utah; and the Lower Basin states of Arizona, California, and Nevada. In general, Upper Basin rights are senior to Lower Basin ones, but California’s Imperial Valley farmers and certain Indian tribes have the most senior water rights in the whole basin. The Central Arizona Project’s rights, meanwhile, are the most junior (meaning that if there is a shortage without a legal bargain, that project gets cut back first).
The pact was based on an early-20th-century survey which estimated the Colorado delivers 16.4 million acre-feet per year. Each basin therefore receives an annual apportionment of 7.5 million acre-feet of water, plus another 1.5 million for Mexico. (An acre-foot would cover a football-field-sized parcel of land with water to a depth of one foot.)
Climate change has torched the antique logic of Western water rights. Even at the time, 16.4 million was far too optimistic, and the year 2000 ushered in a severe and ongoing drought, the worst in 1,200 years. The river owes its existence to melting snow, so this past winter’s record-setting lack of snowfall was catastrophic—particularly given that both Lakes Mead and Powell were already low, at about 33 percent and 23 percent full, respectively. The spring’s higher-than-average temperatures led the National Oceanic and Atmospheric Administration to warn that the West can expect worse. If runoff is low enough, the levels on Lake Powell could sink below the power intakes on Glen Canyon Dam as early as this summer.
Anne Castle, a former commissioner and chair of the Upper Colorado River Commission, says there’s a gap of about four million acre-feet between what the river supplies and what humans demand. She is a senior fellow at the University of Colorado Law School’s Getches-Wilkinson Center for Natural Resources, Energy, and the Environment. “Because the effect of global warming is decreasing the amount of runoff in the entire Colorado River Basin, we just have less water to work with than we have had before, and that we’ve become accustomed to using,” she says.
The 2026 deadline seemed a long way off in 2007. The Bureau of Reclamation had been prodding the states to come up with a plan before the agency imposes one on them. But that hasn’t worked either.
The Upper Basin states argue that they use less water overall. (California is indeed the largest consumer, though Colorado is in second place.) Wyoming has come up with a voluntary pilot program that encourages landowners to use less water. Utah has a similar volunteer plan and pays farmers $390 per acre-foot to hold off on planting and irrigating new crops. These states have long resisted mandatory cuts, pointing out that Lower Basin states like Arizona continue to build water stressors like housing developments and data centers.
The decreased runoff is the backdrop for the crisis’s latest chapter. Last week, Govs. Jared Polis (D-CO), Mark Gordon (R-WY), Michelle Lujan Grisham (D-NM), and Spencer Cox (R-UT) issued a statement about a proposed “draw down,” a water release from several reservoirs to address the Lower Basin states’ serious issues. “Existing state laws in the Upper Division States require water users to face cuts to water rights dating back to the 1800s,” they said. “These cuts are mandatory, uncompensated, and will have significant impacts on water users, including Upper Basin Tribes, and local economies … We recognize the need to live within the available supply and expect other communities to do so as well.”
The Lower Basin states have already had mandatory cuts to their water allotments. The Upper Basin states once let any water they didn’t use flow south; now, they’re using more of that water and allowing less to go elsewhere. “And Arizona and California got a little addicted to the extra water,” Holyoke says. In February, the three Lower Basin governors—Gavin Newsom (D-CA), Katie Hobbs (D-AZ), and Joe Lombardo (R-NV)—reiterated their interest in a proposal to reduce their allotments: Arizona by 27 percent, California by 10 percent, and Nevada by nearly 17 percent. But the Upper Basin wouldn’t offer up any cuts.
The most senior water rights user in the Lower Basin has a big problem. California, the largest water user in the system, sends quite a bit of the Colorado to Los Angeles and the Imperial Valley, a key agricultural area, and four tribes. If California has to cut back, the state might set itself up for an intrastate water war between Los Angeles and the Imperial Valley. “The more water [California] gets overall from the Colorado River, the less it has to worry about this internal fight,” says Holyoke.
Native American tribes have some of the most senior water rights in the basin and throughout the West. But they’ve been underrepresented in federal and state policy discussions. Some tribes that don’t have water infrastructure in place have been wary of states like Arizona that want water in exchange for infrastructure development assistance.
THE EXPIRING INTERIM WATER AGREEMENT meant that the states had to come up with a plan to share water under the mandatory National Environmental Policy Act process designed to help the states create a new plan. The Bureau of Reclamation decided to forge ahead with a draft environment impact statement with five possible alternatives—ranging from taking no action to varying the levels of coordination between federal authorities, states, tribes, and conservation groups to protect critical infrastructure and key resources.
It’s in keeping with the basic idea of the original Colorado River Compact, which was to manage the basin’s water through some negotiation and compromise, rather than strictly following the letter of the law. But the legal foundation of prior appropriation hamstrings negotiations at every turn. Farmers account for the overwhelming majority of Colorado water use—almost a third goes to cattle feed alone—and thanks to how the system was initially designed, their prices are absurdly subsidized. One recent study found that while municipal districts pay an average of $512.01 per acre-foot, agricultural irrigation districts paid an average of $30.32 per acre-foot. Fully a quarter of all Colorado water diversions, all to farmers, cost nothing at all. Such a subsidy is difficult to unwind.
So it’s no surprise states missed two deadlines to come up with an agreement. Arizona, for example, rejected all five proposals in the draft EIS. Arizona has the most junior rights in the system and, as a result, could suffer catastrophic cuts to its water allotments.
These stresses could affect residents by the end of the year. If Glen Canyon Dam can’t generate any electricity, federal authorities could be forced to find other power sources and ratepayers could face higher costs.
The bureau could also forge ahead with the plan that can best withstand a court test. Yet there’s also the 2024 case Texas v. New Mexico and Colorado, in which the Supreme Court rejected a lower court’s approval of a Rio Grande groundwater plan that ignored the federal government’s stance on the issue.
The feuding states seem to be headed for the nuclear option, straight to the Supreme Court, which hears original jurisdiction cases—disputes between states. Arizona has $3 million and counting in its war chest for legal fees. The Central Arizona Project, which supplies water to Phoenix, Tucson, smaller municipalities, and irrigation projects, has budgeted $6 million for its fight. In the Upper Basin, Utah also has allocated $6 million and Colorado is hiring water attorneys.
“The hydrology is really bad right now,” says John Berggren, the regional policy manager for the Western Resources Advocates, a Boulder-based conservation, research, and environmental law group. “[The bureau] needs to push the boundaries of their authority [if ] they really want to protect the system.” He adds that especially in Colorado, people say, “‘No, we have a strong legal position.’ I don’t know if people understand how risky that is for individual water users.”
The Supreme Court typically relies on a special master, a technical expert, to analyze the complexities in interstate water disputes. If the states come up with an agreement, “you know what the deal is, and you plan for that,” Berggren says. “If you take this to the Supreme Court, you have no idea how you’re going to come out of that and potentially you’re looking at mandatory, sharp reductions to your users … rather than planned, proactive conservation.
Water conservation and measures like paying farmers and others to use less water would be a start for Castle. “The ideal agreement among the states would be one that is based on the actual supply of water in the system so it would look at the natural flow of the Colorado River and divide that between the Upper Basin and the Lower Basin. It wouldn’t rely on fixed volumes. It would be based on how much water there actually is in the river and divide that up proportionately.”
The basin can’t stand up to the ravages of climate change or the pressures posed by human activity by clinging to the Colorado River’s arcane water policies forged almost two centuries ago. The resistance to compromise is bad enough. The states’ quest to adjudicate their way out of the latest chapter in the water feuds that began with Irwin and Phillips doesn’t bode well for the West.
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